Standard Services Agreement
SkillFitness, LLC, collectively with its agents, consultants, employees, officers and directors, will be referenced herein as "SF," "we," or "us" (“SF”). Please read this carefully before you use the SF services described below. SF is a U.S. company and subject only to U.S. laws and jurisdiction. Currently, these documents are only available in English. If any portion of these terms is unclear, please email us at: contact@SkillFitness.com.
1. Accepting the Terms of the Agreement
Customized Subscriber services and pricing may be negotiated and agreed to in writing in a separate Group License and Service Order (“GLSO”) or Reseller License and Service Order (“RLSO”).
2. Modifications to this Agreement
SF reserves the right, in its sole discretion, to modify this Agreement at any time by posting a revised Agreement through the Services and by providing notice to you that this Agreement has changed, generally via e-mail where practicable, and otherwise through the Services (such as through a notification in your account dashboard). You are responsible for reviewing and becoming familiar with any modifications to this Agreement. Modifications are effective when posted, and your use of the Services following any such posted modification and notice of same constitutes your acceptance of the terms and conditions of this Agreement as modified. Note that, if you have prepaid for any Paid Services (as defined below) prior to a modification of this Agreement, your use of such prepaid Paid Services is governed by the version of this Agreement in effect at the time SF received your prepayment.
3. Use of the Services
License to use Services:
SF grants you a nonexclusive, non-transferable, limited license to use the Services (including all versions and updates) on any device (iOS, Android, other computer or device using Google Chrome) that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service, the Google Play Terms of Service, or the Chrome Web Store terms or service.
Usage of terms like sell, sale, buy, purchase, or similar terms all refer to your acquisition of a license to use the Services, and do not represent any transfer of any right, title, or ownership interest of any kind. You may not relicense, resell, transfer, or exchange the Services within or outside of the Services, except as expressly allowed by the rules of the Services.
Maintenance and Support:
SF is solely responsible for providing any maintenance and support services with respect to the Application, or as required under applicable law. You acknowledge that Apple, Google, or other distribution provider has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. SF’s tiered support offerings are described on the Site. The type of support we give you depends on the plan you have subscribed to. If you have subscribed for support and have technical problems with the Services, you should make all reasonable efforts to investigate and diagnose problems before contacting us. Any questions, complaints or claims with respect to the Application should be directed to SkillFitness Customer Service at the following email address: support@SkillFitness.com.
Service Changes and Limitations:
The Services change frequently, and their form and functionality may change without prior notice to you. SF retains the right to create limits on and related to use of the Services in its sole discretion at any time with or without notice. SF may also impose limits on certain Services or aspects of those Services or restrict your access to parts or all of the Services without notice or liability. SF may change, suspend, or discontinue any or all of the Services at any time, including the availability of any product, feature, database, or Content (as defined below). SF may also suspend Accounts (as defined below) at any time, in its sole discretion.
Limitations on Automated Use:
You may not do any of the following while accessing or using the Services: (a) access, tamper with, or use non-public areas of the Services, or the computer or delivery systems of SF and/or its service providers; (b) probe, scan, or test any system or network (particularly for vulnerabilities), or otherwise attempt to breach or circumvent any security or authentication measures; (c) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by SF (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with SF, or unless permitted by SF's robots.txt file or other robot exclusion mechanisms; (d) scrape the Services, and particularly scrape Content (as defined below) from the Services, without SF's express prior written consent; (e) use the Services to send altered, deceptive, or false source-identifying information, including without limitation by forging TCP-IP packet headers or e-mail headers; or (f) interfere with, or disrupt, (or attempt to do so), the access of any Subscriber, host or network, including, without limitation, by sending a virus to, spamming, or overloading the Services, or by scripted use of the Services in such a manner as to interfere with or create an undue burden on the Services.
4. Registration, SF URLs, Security, Privacy
As a condition to using certain of the Services, you may be required to create an account (an "Account") and select a password and SF username. “User account” as referenced herein encompasses enterprise admin accounts as well as any enterprise individual user accounts.
You should provide SF with accurate, complete, and updated registration information, particularly your e-mail address, and failure to do so may result in suspension of your Account.
You agree that you shall not select or use a name of another person or entity with the intent to impersonate that person or entity or with the intent to otherwise cause confusion as to the origin or provenance of your Account. SF reserves the right to refuse registration of, cancel, or modify a user account in its sole discretion.
Access and Passwords
As part of the account creation process for the Services, you have selected or been assigned a particular password and SF ID in accordance with SF's password and SF ID guidelines. YOU AGREE THAT YOU ARE THE ONLY INDIVIDUAL ENTITLED TO ACCESS THE SERVICES USING YOUR PASSWORD OR SF ID, AND YOU AGREE NOT TO PERMIT OTHERS TO ACCESS THE SERVICES USING YOUR PASSWORD OR SF ID. You agree that all actions taken by you, or any other user that accesses the Services using your SF ID, at or through the Services will be attributed to and legally bind you, even with respect to acts for which the user had no actual authority or made an error. You assume all resulting liability from use of the Services and any use by you or others using your password or SF ID. If you lose your password, please use the password recover feature in the Application.
5. Trainee Use
SF has developed the Services, especially the Application, to permit creation and delivery of video-based sales training content (“content”) as well as to allow individuals (“trainees”) to view such content and practice sales techniques. You must ensure that all trainees that access the Content and/or utilize the practice function accept the terms of this Agreement. You acknowledge that you are solely responsible for your trainee’s actions while using the Services, including the Application, and agree to indemnify and defend SF from any claims, demands or lawsuits of any kind arising from your trainees’ breach any of these terms. You are responsible for governance and management of your courses and what data you provide for use with the Application for the courses you develop, including without limitation, any logos, information look and feel, and any other intellectual property.
6. Content and Subscriber Content
For purposes of this Agreement: (1) the term "Content" means a creative or commercial expression and includes, without limitation, video, audio, photographs, images, illustrations, animations, logos, tools, advertising or promotion materials, written posts, replies, and comments, information, data, text, software, scripts, executable files, graphics, themes, and interactive features, any of which may be generated, provided, or otherwise made accessible on or through the Services; (2) the term "Subscriber Content" is all Content that is posted or otherwise provided or transferred to the Services by a Subscriber (including, without limitation, by you); and Content also includes, without limitation, all Subscriber Content.
Subscribers retain ownership of all intellectual property rights in their Subscriber Content, and SF and/or third parties retain ownership of all intellectual property rights in all Content other than Subscriber Content.
Subscriber Content License to SF:
When you transfer Subscriber Content to SF through the Services, you give SF a non-exclusive, worldwide, royalty-free, sublicensable, transferable right and license to use, host, store, cache, reproduce, publish, display (publicly or otherwise), perform (publicly or otherwise), distribute, transmit, modify, adapt (including, without limitation, in order to conform it to the requirements of any networks, devices, services, or media through which the Services are available), and create derivative works of (including, without limitation, by Sharing, as defined below), such Subscriber Content. The rights you grant in this license are for the limited purpose of operating the Services in accordance with their functionality and improving or enhancing the Services provided. The reference in this license to "derivative works" is not intended to give SF itself a right to make substantive editorial changes or derivations.
Note also that this license to your Subscriber Content continues even if you stop using the Services, primarily because of the social nature of Content shared through the Services - when you post something publicly, others may choose to comment on it, making your Content part of a social conversation that cannot later be erased without retroactively censoring the speech of others.
Content License to You:
As a Subscriber of the Services, SF grants you a worldwide, non-exclusive, non-sublicensable, and non-transferable license to download, store, view, display, perform, redistribute, and create derivative works of Content solely in connection with your use of, and in accordance with the functionality and restrictions of, the Services (including, without limitation, Paid Services, as defined below). This means, for example, that we license Content to you so that you can share Content and add commentary to it.
Termination and Deletion:
Unless otherwise provided herein, on termination of your Account or upon your deletion of particular pieces of Subscriber Content from the Services, SF shall make reasonable efforts to make such Subscriber Content inaccessible and cease use of it; however, you acknowledge and agree that: (a) caching of, copies of, or references to the Subscriber Content may not be immediately removed; (b) such removed Subscriber Content may persist in backups (not available to others) for a reasonable period of time; and (c) such removed Subscriber Content may be available (and stored on our servers) through the activity of other Subscribers, such as Sharing.
7. Paid Services/Reseller Program
Unless otherwise provided by SF, use of the Services requires payment of fees (the "Paid Services"). Such fees are described in our current Fee Schedule, which can be found on the Site. Services and related fees may also be described in a custom GLSO or RLSO presented and signed as a separate contract. SF reserves the right to change the Fee Schedule at any time. All fees are stated in United States dollars.
Paid Services are limited licenses for you to use particular for-pay aspects of the Services. Usage of terms like sell, sale, buy, purchase, or similar terms all refer to your acquisition of a license to use Paid Services, and do not represent any transfer of any right, title, or ownership interest of any kind.
SF also offers custom content creation and management as well as co-branded application development built on the SF Services platform. These premium services and related fees are described on the Site. Such services and fees may also be described in a custom GLSO or RLSO, which would be negotiated and signed as a separate contract.
SF may, in its sole discretion, modify the functionality of, or eliminate, Paid Services, or the terms and conditions under which Paid Services are provided.
If you are an individual user of the Paid Services, such as a sales employee, your use of the Services may require that your employer or other affiliated third party (“Employer”) be a subscriber to the Paid Services on your behalf. If your Employer chooses to end the subscription, you may no longer be able to access the Services or any data you may have generated through the Services. If other services requiring payment are offered directly to end users, SF will provide details of pricing and other terms for those services on the Site or within the Application.
SF offers a Reseller Program, which will allow others to create and share Content and sell group or individual user licenses to access same. See the general Reseller Program Agreement Termson our Site or customer-specific terms in the RLSO. Aside from the foregoing, you may not relicense, resell, transfer, or exchange Paid Services within or outside of the Services.
8. Special Provisions for Application Developers
If we permit you to develop software or services based on the Services or any Content, whether using an SF Application Programming Interface or not, you will agree to and comply with any applicable SF developer agreements.
9. Use of Trademarks
Any use of SF's trademarks, branding, logos and other such assets in connection with the Services, such as the word mark SKILLFITNESS or the SkillFitness shield logo, shall be in connection with Subscriber internal use and not for external promotion or public relations unless approved by SF.
10. Warranty Disclaimer; Services Available on an "AS-IS" Basis
Subject to SF rights provided elsewhere in this Agreement, including the warranty disclaimer provision below, you acknowledge that, as between SF and Apple, Google, or other distribution provider, SF is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Application to conform to any applicable warranty, you may notify Apple, Google, or other distribution provider and that distribution provider will refund the purchase price for the Application to you; and that, to the maximum extent permitted by applicable law, Apple, Google, or other distribution provider will have no other warranty obligation whatsoever with respect to the Application, and, to the extent not effectively disclaimed, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be SF’s sole responsibility.
Your access to and use of the Services or any Content is at your own risk. YOU UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. WITHOUT LIMITING THE FOREGOING, TO THE FULL EXTENT PERMITTED BY LAW, SF DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
SF makes no representations or warranties of any kind with respect to the Services, including any representation or warranty that the use of the Services will (a) be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) meet your requirements or expectations, (c) be free from errors or that defects will be corrected, or (d) be free of viruses or other harmful components. SF also makes no representations or warranties of any kind with respect to Content; Subscriber Content, in particular, is provided by and is solely the responsibility of, the Subscribers providing that Content.
Any opinions, advice, statements, services, offers, or other information that constitutes part of the Content expressed or made available by third parties are those of the respective authors or distributors and not of SF nor its affiliates, nor any of its officers, directors, employees, or agents. You acknowledge that SF does not pre-screen all content, but that SF and its designees shall have the right (but not the obligation) in their sole discretion to refuse or move any content that is available via the Services. Without limiting the foregoing, SF and its designees shall have the right to remove any content that violates this Agreement or is otherwise objectionable. You specifically agree that SF is not responsible for any content sent using and/or included in the Site by any third party.
In the event of any third party claim that the Application or your possession and use of the Application infringes any third party intellectual property rights, you acknowledge that as between SF and Apple, Google, or other distribution provider, SF, not the distribution provider, will have responsibility for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. The foregoing is without waiver of any claim or defense that SF may have with regard to such intellectual property infringement claim.
11. Release from Liability
You release, to the fullest extent permitted by law, SF, its directors, officers, shareholders, employees, representatives, consultants, agents, suppliers, re-sellers, and/or distributors from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with the following:
- Disputes between Subscribers, including those between you and other Subscribers.
- Third party sites and services, including content found on such sites and services.
- Disputes concerning any use of or action taken using your Account by you or a third party.
- Claims relating to the unauthorized access to any data communications or Content stored under or relating to your Account, including unauthorized use or alteration of such communications or your Content.
If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
12. Limitation of Liability
Subject to SF rights under this Agreement, including the foregoing Sec. 11 Release of Liability and the Limitation of Liability provision hereinafter, you acknowledge that SF, not Apple, Google, or other distribution provider is responsible for addressing any claims of you or any third party relating to the Application or your possession and/or use of that Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SF, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, RE-SELLERS, AND/OR DISTRIBUTORS SHALL NOT BE LIABLE FOR: (A) ANY INDIRECT, INCIDENTAL, EXEMPLARY PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (B) LOSS OF: PROFITS, REVENUE, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES; (C) DAMAGES RELATING TO YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES; (D) DAMAGES RELATING TO ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OR SUBSCRIBER USING THE SERVICES, INCLUDING WITHOUT LIMITATION, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OR CONTENT; AND/OR (E) DAMAGES IN ANY MANNER RELATING TO ANY CONTENT. THIS LIMITATION APPLIES TO ALL CLAIMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT SF HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND FURTHER WHERE A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF SF AND ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, RE-SELLERS AND/OR DISTRIBUTORS, FOR ANY CLAIM UNDER THIS AGREEMENT, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE GREATER OF FIFTY DOLLARS (US$50.00) OR THE AMOUNT YOU PAID US TO USE THE APPLICABLE SERVICE(S).
13. Exclusions to Warranties and Limitation of Liability
Some jurisdictions may not allow the exclusion of certain warranties or the exclusion/limitation of liability as set forth in Section 12, so the limitations above may not apply to you.
Either party may terminate this Agreement at any time by notifying the other party. SF may also terminate or suspend your access to or ability to use any and all Services immediately, without prior notice or liability, for any reason or no reason, including but not limited to if you breach any of the terms or conditions of this Agreement. In particular, SF may immediately terminate or suspend Accounts that have been flagged for repeat copyright infringement.
Upon termination of your access to or ability to use a Service, including but not limited to suspension of your Account on a Service, your right to use or access that Service and any Content will immediately cease. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Services shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability that you otherwise may have to SF or any third party.
15. Legal Disputes
You and SF agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or the Services in accordance with this Section or as you and SF otherwise agree in writing. Before resorting to litigation, we strongly encourage you to contact us directly to seek a resolution.
Law and Forum for Legal Disputes:
This Agreement shall be governed in all respects by the laws of the State of Minnesota as they apply to agreements entered into and to be performed entirely within Minnesota between Minnesota residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against SF must be resolved exclusively by a single arbitrator under the AAA Commercial Rules in Hennepin County, Minnesota, except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the state and federal courts located within Hennepin County, Minnesota for the purpose of confirmation of any resulting arbitration award.
This Agreement, as modified from time to time, constitutes the entire agreement between you and SF with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof and constitutes the entire and exclusive agreement between the parties. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by you except with SF's prior written consent. SF may assign this Agreement in whole or in part at any time without your consent. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and you do not have any authority of any kind to bind SF in any respect whatsoever.
Consent to Electronic Notices and Other Communications
You agree that all of your transactions relating to the Site may, at our option, be conducted electronically, including any that we are otherwise required to provide in a "writing." For example, we may send you notice via postings at the Site or via email to any email address that you provide to us during registration as a Site member. If you do not wish to deal with us electronically, you should not use the Site or enter into this Agreement. If applicable law now or later requires us to communicate with you non-electronically, we reserve the right to charge a fee for doing so. Notice will be deemed given 24 hours after it is the email is sent, unless (for email) we are notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided during registration. In such case, notice will be deemed given 3 days after the date of mailing.
Any notice to SF that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to SkillFitness, LLC, 333 Washington Avenue North, Suite 411, Minneapolis, MN 55401, USA.
17. Special Provisions for Non-U.S. Subscribers
SF provides global products and services and enables a global community for businesses and individuals to conduct sales training. SF's operations are, however, located in the United States, and SF's policies and procedures are based on United States law. As such: (1) you consent to the transfer, storage, and processing of your information, including but not limited to Subscriber Content and any personal information, to and in the United States and/or other countries; (2) you affirm that you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (3) you affirm that you are not listed on any U.S. Government list of prohibited or restricted parties.
18. DMCA Copyright Policy
SF has adopted the following policy toward copyright infringement on the Services in accordance with the Digital Millennium Copyright Act (a copy of which is located at http://www.loc.gov/copyright/legislation/dmca.pdf, the "DMCA"). The address of SF's Designated Agent for copyright takedown notices ("Designated Agent") is listed below.
Reporting Instances of Copyright Infringement:
If you believe that Content residing or accessible on or through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent at the address below:
- Identification of the work or material being infringed.
- Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that SF is capable of finding it and verifying its existence.
- Contact information for the notifying party (the "Notifying Party"), including name, address, telephone number and e-mail address.
- A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
- A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.
After removing material pursuant to a valid DMCA notice, SF will immediately notify the Subscriber responsible for the allegedly infringing material that it has removed or disabled access to the material. SF reserves the right, in its sole discretion, to immediately terminate the account of any Subscriber who is the subject of repeated DMCA notifications.
Submitting a DMCA Counter-Notification:
If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with SF by providing the following information to the Designated Agent at the address below:
- The specific URLs of material that SF has removed or to which SF has disabled access.
- Your name, address, telephone number, and email address.
- A statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or the federal district courts located in Hennepin County, Minnesota if your address is outside of the United States), and that you will accept service of process from the person who provided the original DMCA notification or an agent of such person.
- The following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
- Your signature.
Upon receipt of a valid counter-notification, SF will forward it to Notifying Party who submitted the original DMCA notification. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material. If SF does not receive any such notification within ten (10) days, we may restore the material to the Services.
333 Washington Avenue North
Minneapolis, MN 55401
Attn: Wilson Garland